What neutral territory did the administration choose to consider such a critical question? Perhaps one of the many government-owned venues in downtown DC? Nope. They went with the headquarters of the Chamber of Commerce. The Chamber's not exactly a disinterested party in a pact that could implicate a wide swath of U.S. regulation used to balance big business's quest for profits with the public's quest for financial stability, a healthy environment, safe products, and affordable medicines. The venue choice is akin to the Environmental Protection Agency hosting a forum on offshore drilling...on an offshore drill.

But at least the administration granted public interest groups like us some time to offer input. As in, a half hour. Total. For all consumer groups. In a 1.5-day-long forum otherwise filled almost exclusively by industry representatives. If relative allotment of time is indicative of the relative importance the administration attributes to industry views on TAFTA vs. the views of everyone else, big business "stakeholders" hold 76% of the administration's attention, technical standards organizations hold 11%, and the opinions of the rest of us are worth 13%.

During that half hour, I squashed Public Citizen's initial take on TAFTA, one of the largest "trade" deals proposed to date, into a five-minute statement. For a nutshell view of what's at stake in TAFTA, here's the statement:

Oral
Statement for the U.S.-EU High Level Regulatory Cooperation Forum

Public Citizen welcomes the opportunity to
comment on regulatory cooperation between the United States and EU in the
context of the recent decision to launch negotiations for a Trans-Atlantic Free
Trade Agreement, or TAFTA.
Public Citizen is a national, nonprofit public interest organization with
150,000 members that champions citizen interests before Congress, executive
branch agencies and the courts. Public Citizen believes that advancement of
consumer well-being must be the primary goal of any U.S.-EU pact.

We
are skeptical that a deal built on regulatory convergence, as proposed for
TAFTA, will serve consumer interests. Consumers have different priorities in
different countries. Differences in regulatory standards between countries with
different constituent priorities should be expected and respected as the
legitimate outgrowth of trade between democratic nations, such as those
contemplating TAFTA. However, the process leading to the launch of TAFTA
negotiations has been characterized by attempts to eliminate regulatory
distinctions for the sake of narrow business interests. It is not apparent that
any efficiency gains resulting from regulatory convergence would a) significantly
accrue to consumers rather than just to those business interests, b) outweigh
consumers’ loss of ability to set the regulations that affect them, or c) justify
the considerable expenditure of limited government resources to engage in
multi-year negotiations between Parties with already low tariffs. Before
adopting a regulatory convergence approach, the U.S. and EU should establish a
transparent process to study these critical questions.

If
TAFTA proceeds with the approach of trying to establish uniform standards, then
the established standard should be set as a regulatory floor, not a ceiling. This
approach safeguards the ability of a country to establish stronger standards in
response to emerging consumer demands or unforeseen policy challenges and
crises. Given that trade agreement rules are not easily altered and that negotiators
cannot see into the future, such flexibility is essential. A common regulatory
floor set at the highest standard of any involved country would still provide
efficiency gains without sacrificing consumer protections. The U.S. and EU
should exclude from the pact any sector or area where they cannot agree on this
floor-not-ceiling framework.

Any
standard-setting terms in TAFTA must strengthen consumer protections in critical
policy arenas. To ensure food safety, for example, any rules implicating food
health standards or labeling must be limited to requiring that policies be applied
equally to domestic and foreign goods. Each nation must be allowed to set
non-discriminatory standards and labeling policies based on consumer demands
and priorities alone. To ensure financial stability, any harmonized standards must
set a floor of strong financial regulation based on the most robust post-crisis
reregulation efforts of the U.S. and EU. The agreement must explicitly
safeguard measures such as non-discriminatory bans on risky products, facially
neutral limits on firm size, and capital controls – now officially endorsed by
the IMF. Any deal should also establish a more effective exception for
prudential measures than seen in the WTO.

To
ensure climate security, any agreement must provide policy space for signatory
countries to respond to the emerging climate crisis with stronger policies to
control greenhouse gas emissions. This includes allowance for feed-in tariffs,
emissions-based taxation, and performance standards. Consumers’ access to an
open Internet and affordable medicines, meanwhile, should not be implicated by
TAFTA. Overreaching patent and copyright provisions in past “trade” agreements,
the Stop Online Privacy Act (rejected by the U.S. Congress) and the
Anti-Counterfeiting Trade Agreement (rejected by the European Parliament) have threatened
such access. The U.S. and EU already provide robust patent and copyright
protections without the addition of such sweeping terms. To ensure the
protection of these consumer rights, this prospective agreement must exclude intellectual
property provisions.

Any
agreement must not include the extreme investor-state system included in past
U.S. and EU trade and investment deals. The investor-state mechanism uniquely empowers
foreign investors to directly challenge sovereign governments over contested public
interest policies in tribunals that operate completely outside any domestic
legal system. The ostensible premise for such an extreme procedure is that some
domestic legal systems are too corrupt, incompetent or ill-equipped to hear
foreign investors’ claims. Since neither the U.S. nor any EU member state is
likely to assert that this description befits the legal system of any TAFTA
nation, the anomalous investor-state system is absolutely unacceptable for TAFTA.
So are the open-ended rights provided to foreign investors, but not domestic
firms, under this system. Inventive tribunals have imputed, for example, a
right of investors to obtain government compensation for any policy that contravenes
their expectations. The U.S. government has rightly argued that such broad
terms, which have enabled the current surge in costly investor-state cases,
would cause the government to lose the right to regulate in the public interest.

Given
that TAFTA could implicate a wide swath of domestic non-trade policies,
including those named here, the respective legislatures must establish binding
goals for the negotiations before talks begin, and should be consulted regularly
to ensure those objectives are being fulfilled. Any resulting agreement should
not be signed unless and until the U.S. and EU legislatures approve the
proposed text through a vote that affirms it has met the established
objectives. The process must also be open to the public. Negotiating texts and
country submissions for TAFTA must be made publicly available so that stakeholder
groups, including those not granted preferential access to official trade
advisory committees, can give meaningful input on the critical policy decisions
at issue. Negotiators should consult not just with the industry groups that
have been disproportionately consulted in past agreements, but with the more
diverse array of stakeholders that is required to represent the consumer
interests that should stand at the heart of any deal.

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About Us

Eyes on Trade is a blog by the staff of Public Citizen's Global Trade Watch (GTW) division. GTW aims to promote democracy by challenging corporate globalization, arguing that the current globalization model is neither a random inevitability nor "free trade." Eyes on Trade is a space for interested parties to share information about globalization and trade issues, and in particular for us to share our watchdogging insights with you! GTW director Lori Wallach's initial post explains it all.

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